<PAGE>
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-QSB
(Mark One)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934.
For the quarterly period ended SEPTEMBER 30, 1996
------------------
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
------------------ ------------------------
Commission file number 1-4530
ASTREX, INC.
(Exact name of small business issuer as specified in its charter)
DELAWARE 13-1930803
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
205 EXPRESS STREET, PLAINVIEW, NEW YORK 11803
(Address of principal executive offices)
(516) 433-1700
(Issuer's telephone number, including area code)
- --------------------------------------------------------------------------------
(Former name, former address and former fiscal year, if changed since last
report)
Check whether the issuer (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding
12 months (or for such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing requirements for the past
90 days. Yes [X] No
APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY
PROCEEDINGS DURING THE PRECEDING FIVE YEARS
Check mark whether the registrant has filed all documents and reports required
to be filed by Section 12, 13 or 15(d) of the Securities Exchange Act of 1934
subsequent to the distribution of securities under a plan confirmed by a court.
Yes [X] No
APPLICABLE ONLY TO CORPORATE ISSUERS
State the number of shares outstanding of each of the registrant's classes of
common stock, as of the latest practicable date. As of November 8, 1996, common
shares outstanding were 5,375,363.
<PAGE>
ASTREX, INC.
INDEX
Page No.
PART I:
Financial Statements:
Consolidated Balance Sheets
September 30, 1996 (unaudited) and March 31, 1996 1-2
Consolidated Statements of Income (unaudited)
Six Months and Three Months Ended
September 30, 1996 and 1995 3
Consolidated Statements of Cash Flows (unaudited)
Six Months Ended September 30, 1996 and 1995 4
Notes to Consolidated Financial Statements (unaudited) 5
Management's Discussion and Analysis or
Plan of Operations 6-7
PART II:
Other Information and Signatures 8
<PAGE>
<TABLE>
<CAPTION>
PART I - Financial Information
ASTREX, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
September 30, 1996 March 31, 1996
(Unaudited)
----------- --------------
(000) Omitted
<S> <C> <C>
Current Assets:
Cash $ 2 $ 2
Accounts receivable (net of allowance
for doubtful accounts of $86 at September
30, 1996 and $87 at March 31, 1996) 1,639 1,765
Merchandise inventories 3,425 3,934
Prepaid expenses and other
current assets 64 21
-- --
Total Current Assets 5,130 5,722
Property, plant and equipment at
cost (net of accumulated depreciation
of $215 at September 30, 1996 and
$185 at March 31, 1996) 680 692
---- --- ---- --- ---
Total Assets $5,810 $6,414
====== ======
</TABLE>
See accompanying notes to unaudited consolidated financial statements.
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<PAGE>
ASTREX, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
September 30, 1996 March 31, 1996
(Unaudited)
----------- --------------
(000) Omitted
<S> <C> <C>
Current Liabilities:
Loans payable $ 1,408 $ 1,782
Accounts payable 1,208 1,650
Accrued liabilities 273 280
--- ---
Total current liabilities 2,889 3,712
----- -----
Shareholders' Equity:
Preferred Stock, Series A - issued, none -- --
Preferred Stock, Series B - issued, none -- --
Common Stock - par value $.01 per share;
authorized, 15,000,000 shares; issued,
5,375,363 at September 30, 1996 and
5,090,363 at March 31, 1996 54 51
Additional paid-in capital 3,604 3,548
Accumulated Deficit (726) (897)
---- ----
2,932 2,702
Less: Deferred Compensation (11) --
Total shareholders' equity 2,921 2,702
----- -----
Total liabilities and shareholders' equity $ 5,810 $ 6,414
======= =======
</TABLE>
See accompanying notes to unaudited consolidated financial statements.
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<PAGE>
<TABLE>
<CAPTION>
ASTREX, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
SIX MONTHS ENDED THREE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
1996 1995 1996 1995
---- ---- ---- ----
(000) Omitted (000) Omitted
<S> <C> <C> <C> <C>
Net sales $7,494 $6,479 $3,735 $3,245
Cost of sales 5,676 4,884 2,821 2,440
----- ----- ----- -----
Gross profit 1,818 1,595 914 805
Selling, general and
administrative expenses 1,536 1,327 764 670
----- ----- --- ---
Income from operations 282 268 150 135
Interest expense 94 117 45 61
-- --- -- --
Income before provision
for income taxes 188 151 105 74
Provision for income taxes 17 4 9 4
-- - - -
Net income $ 171 $ 147 $ 96 $ 70
====== ====== ====== ======
Per share data for the six months and three months ended September 30, 1996
and 1995 are as follows:
Weighted average number of
common shares outstanding 5,314,379 4,823,696 5,375,363 4,957,029
========= ========= ========= =========
Net income per share $0.03 $0.03 $0.02 $0.01
===== ===== ===== =====
</TABLE>
See accompanying notes to unaudited consolidated financial statements.
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<PAGE>
<TABLE>
<CAPTION>
ASTREX, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
FOR THE SIX MONTHS ENDED SEPTEMBER 30,
1996 1995
---- ----
(000) Omitted
<S> <C> <C>
Cash Flows (Uses) From Operating Activities:
Net income $ 171 $ 147
Adjustments to reconcile net income to net
cash provided by (used in) operating activities:
Depreciation and amortization 30 28
Stock award compensation expense 2 12
Changes in operating assets and liabilities:
Decrease (increase) in accounts receivable 126 62
(Increase) decrease in prepaid expenses and
other current assets (43) 44
Decrease in merchandise inventories 509 15
Decrease in accounts payable (442) (313)
Decrease in accrued liabilities (7) (88)
-- ---
Net cash provided by (used in) operating activities 346 (217)
--- ----
Cash flows used in investing activities:
Purchases of fixed assets (19) (22)
--- ---
Net cash used in investing activities (19) (22)
--- ---
Cash flows from financing activities:
Proceeds from issuance of common stock 47 --
(Repayments of) proceeds from loans payable, net (374) 238
---- ---
Net cash (used in) provided by financing activities (327) 238
---- ---
Net decrease in cash for the six months
ended September 30 0 (1)
Cash - beginning of period 2 3
- -
Cash - end of period $ 2 $ 2
===== =====
</TABLE>
See accompanying notes to unaudited consolidated financial statements.
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<PAGE>
ASTREX, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
UNAUDITED FINANCIAL STATEMENTS
In the opinion of the Company, the accompanying unaudited consolidated financial
statements contain all adjustments (consisting only of normal recurring
accruals) necessary to present fairly its financial position as of September 30,
1996. The results of operations and cash flows for the six month period ended
September 30, 1996 and 1995 are not necessarily indicative of the results to be
expected for the full year. In the opinion of management, the information in
this interim report for the six months ended September 30, 1996 and 1995
presents fairly the Company's financial position consistent with the Company's
accounting practices and principles used in interim reports. Accordingly,
certain items included in these statements are based upon best estimates,
particularly cost of goods sold. For the six month periods ended September 30,
1996 and 1995 these costs have principally been determined by utilizing
perpetual inventory records. The calculation of the actual cost of goods sold
amount is predicated upon a physical inventory taken only at the end of each
fiscal year. These financial statements, which are unaudited (except for the
Consolidated Balance Sheet as of March 31, 1996 which is audited), are based on
certain estimates and are subject to year end audit adjustments.
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<PAGE>
ASTREX, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS
OR PLAN OF OPERATIONS
RESULTS OF OPERATIONS
REVENUES
Sales increased by approximately $1,015,000, or 15.7%, for the six months and
approximately $490,000, or 15.1%, for the three months ended September 30, 1996,
from the comparable six and three month periods in 1995, respectively. This
increase is the result of the Company's improved and restructured marketing
efforts as well as (in terms of the past several years) strong military sales.
GROSS PROFIT
The gross profit percentages decreased marginally to 24.3% from 24.6% for the
six months, and to 24.5% from 24.8% for the three months ended September 30,
1996 and 1995, respectively. Despite ongoing price pressures, the Company was
able to maintain essentially stable margins.
SELLING, GENERAL & ADMINISTRATIVE
Selling, general and administrative expenses increased approximately $209,000,
or 15.7%, for the six months and approximately $94,000, or 14.0%, for the three
months ended September 30, 1996 from the comparable previous six and three month
periods in 1995. This increase is primarily due to the increase in salaries,
commissions and other costs needed to generate and support the higher sales
volume.
INTEREST EXPENSE
Interest expense decreased approximately $23,000 for the six months, and
approximately $16,000 for the three months, ended September 30, 1996, from the
previous comparable six and three month periods in 1995. This decrease is due
primarily to a lower loan balance and a reduction in the interest rate to
approximately 10.4% from approximately 12.4% for the six months and to
approximately 10.3% from approximately 12.3% for the three months ended
September 30, 1996 and 1995, respectively.
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<PAGE>
ASTREX, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS
OR PLAN OF OPERATIONS
LIQUIDITY AND CAPITAL RESOURCES
The Company generated $346,000 in cash from its operating activities, and
$47,000 in proceeds from the issuance of restricted common stock to employees
(pursuant to approval by the Board of Directors). The Company used this cash
primarily to paydown the Company's loan. The Company's loan agreement,
collateralized by substantially all of the Company's assets, provides for a line
of credit based on the amount of the Company's inventory and accounts
receivable, but which cannot exceed $2,500,000. The term of the loan presently
expires on July 31, 1997 at which time the Company anticipates, but cannot
assure, that it will be renewed or replaced. The Company's relations with its
secured lender are satisfactory. The Company believes that its current cash
position as well as its available credit facility are adequate for the
foreseeable future. The amount outstanding under this loan was approximately
$1,408,000 at September 30, 1996 and $1,782,000 at March 31, 1996.
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<PAGE>
PART II - OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders
At the October 14, 1996 Annual Meeting of the Company for fiscal year ending
March 31, 1996, Mr. Michael McGuire was elected as a Class I director for a term
of one year, Mr. Mark Schindler and Mr. David S. Zlatin were elected as Class II
directors for a term of two years, and Mr. Howard Amster and Mr. John C. Loring
were elected as Class III directors for a term of three years. In addition,
Sections 2 and 3 of Article II of the Company's By-Laws were amended to read as
follows:
"SECTION 2. NUMBER. THE NUMBER OF DIRECTORS SHALL BE FIVE (5) PROVIDED THAT
IN THE EVENT A THEN SERVING DIRECTOR RESIGNS, IS REMOVED, IS NOT RENOMINATED FOR
ELECTION OR IS OTHERWISE UNABLE TO SERVE, THE BOARD OF DIRECTORS SHALL NOT BE
OBLIGATED TO ELECT OR NOMINATE FOR ELECTION A REPLACEMENT."
"SECTION 3. TERM OF OFFICE AND QUALIFICATIONS. DIRECTORS NEED NOT BE
STOCKHOLDERS. DIRECTORS SHALL BE DIVIDED INTO THREE (3) CLASSES, CLASS I, CLASS
II, CLASS III. THE DIRECTORS SHALL BE EVENLY DISTRIBUTED BETWEEN THE THREE
CLASSES, BUT TO THE EXTENT THAT IS NOT POSSIBLE THEN CLASS I SHALL CONSIST OF
THE ODD NUMBER OF DIRECTORS. ALL THREE CLASSES OF DIRECTORS SHALL BE INITIALLY
ELECTED AT THE ANNUAL MEETING HELD IN CALENDAR YEAR 1996 FOR THE FOLLOWING TERMS
AND UNTIL THEIR SUCCESSORS ARE ELECTED AND SHALL HAVE QUALIFIED TO SO SERVE:
CLASS I FOR A TERM OF ONE YEAR, CLASS II FOR A TERM OF TWO YEARS, AND CLASS III
FOR A TERM OF THREE YEARS. THEREAFTER, THE TERM OF EACH DIRECTOR SHALL BE THREE
YEARS AND UNTIL A SUCCESSOR IS ELECTED AND SHALL HAVE QUALIFIED TO SO SERVE. THE
BOARD OF DIRECTORS MAY REMOVE A DIRECTOR FOR CAUSE."
The voting tally at the meeting with respect to the directors and the
proposals was as follows:
- --------------------------------------------------------------------------------
For Against ABSTAIN & BROKER NONVOTES
- --------------------------------------------------------------------------------
Amster 5,086,442 11,214 -
Loring 5,086,442 11,214 -
Schindler 5,086,442 11,214 -
Zlatin 5,086,442 11,214 -
McGuire 5,086,442 11,214 -
Proposal 1 4,200,493 74,414 822,749
- --------------------------------------------------------------------------------
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<PAGE>
Item 6. Exhibits and Reports on Form 8-K.
(A) Exhibits
Previously Filed and Incorporated
Exhibit Description by reference or Filed Herewith
- ------- ----------- ------------------------------
3 (a) Certificate of Incorporation of Filed as Exhibit 3 (a) to the
Astrex, Inc. (a Delaware corporation) Form 10-K of the Company for
year ended March 31, 1993
3 (b) By-Laws of Astrex, Inc., as amended Filed herewith
27 Financial Data Schedule Filed herewith
(B) Reports on Form 8-K:
None
SIGNATURES
In accordance with the requirements of Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
ASTREX, INC.
Date: November 11, 1996 By: /s/ Michael McGuire
------------------ ------------------
Michael McGuire
President
Chief Executive Officer
By: /s/ Irene S. Marcic
-------------------
Irene S. Marcic
Chief Financial Officer,
Vice President,
Treasurer and Secretary
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<PAGE>
EXHIBIT 3(B)
- ------------
BY-LAWS
ASTREX, INC.
(AS AMENDED AND RESTATED 10/14/96)
---------------------------------------------------------------------------
ARTICLE I
MEETING OF STOCKHOLDERS
Section 1. ANNUAL MEETING. The annual meeting of stockholders shall be held
on a date and at a time as from time to time may be designated by the Board of
Directors, which date and time are to be specified in the notice of meeting.
Section 2. SPECIAL MEETINGS. Special meetings of the stockholders for any
purpose or purposes may be called by the Chairman of the Board or by order of
the Board of Directors and it shall be the duty of the Secretary to call such a
meeting upon a request in writing therefore stating the purpose or purposes
thereof delivered to the Secretary signed by the holders of record of not less
than one-quarter of the outstanding stock of the Corporation.
Section 3. PLACE OF MEETING. Meetings of the stockholders may be held at its
principal office or elsewhere as the Board of Directors from time to time may
determine.
Section 4. NOTICE OF STOCKHOLDERS' MEETING. Notice of the annual and of any
special meeting of stockholders shall be given to each stockholder of record at
least ten and not more
<PAGE>
than fifty days before the meeting by personally delivering to such stockholder
or by depositing in the United States mails, addressed to the address last left
by such stockholder with the Transfer Agent, or in the absence of a Transfer
Agent, the Registrar, the Secretary, of the Corporation, a written or printed
notice, signed by the Chairman of the Board or the President or a Vice-
President or the Secretary or an Assistant Secretary, stating the place, day and
hour of the meeting and purpose or purposes for which the meeting is called, and
any such notice shall be deemed given when personally delivered or deposited
postage prepaid in the United States first class mail. Any stockholder, or his
attorney thereunto authorized, may waive notice of any meeting either before, at
or after the meeting.
Section 5. QUORUM. At all meetings of stockholders the holders of record of a
majority of the issued and outstanding stock of the Corporation, present in
person or by proxy, shall constitute a quorum for the transaction of business.
In the absence of a quorum, a majority in interest of those present or
represented may adjourn the meeting by resolution to a date fixed therein, and
no further notice thereof shall be required. At any such adjourned meeting at
which a quorum may be present, any business may be transacted which might have
been transacted at the meeting as originally called.
Section 6. VOTING. At each meeting of the stockholders every stockholder
holding one or more shares of the stock of the Corporation shall be entitled to
one vote for each such share registered in his name on the books of the
Corporation at the time of the closing of the
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<PAGE>
transfer books of the Corporation for such meeting or on the record date
therefore, as the case may be.
Section 7. PROXIES. Every stockholder entitled to vote at any meeting of
stockholders may vote by proxy. Every proxy must be executed in writing by the
stockholder or by his duly authorized attorney. No proxy shall be voted after
the expiration of eleven months from the date of its execution unless the
stockholder executing it shall have specified a longer duration. Every proxy
shall be revocable at the pleasure of the person executing it or of his personal
representatives or assigns except as otherwise provided by law.
Section 8. INSPECTORS OF ELECTION. Two inspectors of election, who shall act
as such at elections of directors, may be elected by and shall serve at the
pleasure of the Board of Directors. In the absence of such election the
inspectors shall be the Secretary and the Treasurer of the Company. If one or
both of such inspectors fail to appear at any meeting for the election of
directors, the Chairman of the meeting may appoint a substitute or substitutes
to act at such meeting in place of such absent inspector or inspectors. Each
inspector shall be entitled to a reasonable compensation for his services, to be
paid by the Corporation. The inspectors, before entering upon the discharge of
their duties shall be sworn faithfully to execute the duties of inspectors at
such meeting with strict impartiality, and according to the best of their
ability, and the oath so taken shall be subscribed by them.
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<PAGE>
ARTICLE II
BOARD OF DIRECTORS
Section 1. GENERAL POWERS. The property, affairs and business of the
Corporation shall be managed by the Board of Directors.
Section 2. NUMBER. The number of directors shall be five (5) provided that in
the event a then serving director resigns, is removed, is not renominated for
election or is otherwise unable to serve, the Board of Directors shall not be
obligated to elect or nominate for election a replacement.
Section 3. TERM OF OFFICE AND QUALIFICATIONS. Directors need not be
stockholders. Directors shall be divided into three (3) classes, Class I, Class
II, Class III. The directors shall be evenly distributed between the three
classes, but to the extent that is not possible then Class I shall consist of
the odd number of directors. All three classes of directors shall be initially
elected at the Annual Meeting held in calendar year 1996 for the following terms
and until their successors are elected and shall have qualified to so serve:
Class I for a term of one year, Class II for a term of two years, and Class III
for a term of three years. Thereafter, the term of each director shall be three
years and until a successor is elected and shall have qualified to so serve. The
Board of Directors may remove a Director for cause.
-4-
<PAGE>
Section 4. CHAIRMAN OF THE BOARD. The Board of Directors may elect a Chairman
of the Board from among its members to serve at its pleasure, who shall preside
at all meetings of the Board of Directors. If the Chairman of the Board shall be
absent or unable to act as such, the Chairman of the Executive Committee, or if
the Chairman of the Executive Committee is absent or unable to act as such, the
Chairman of the Audit Committee shall perform his duties.
Section 5. VACANCIES. Vacancies in the Board of Directors because of death,
resignation, disqualification, physical, mental incapacity to act, an increase
in the number of members of the Board of Directors, or resulting from any other
cause whatsoever, may be filled for the unexpired portion of the term by a
majority vote of the remaining directors, although less than a quorum, given at
a regular meeting, or at a special meeting called for the purpose.
Section 6. PLACE OF MEETING. The Board of Directors shall hold its meeting at
such places within or without the State of New York or by telephone conference
call as it may decide.
Section 7. REGULAR MEETINGS; NOTICE. The Board of Directors by resolution may
establish regular periodic meetings and notice of such meetings need not be
given.
Section 8. SPECIAL MEETINGS. Special Meetings of the Board of Directors shall
be called by the Chairman of the Board or any two other directors. Such meetings
unless otherwise noticed shall be held at the principal office of the
Corporation. Notice of each special meeting shall be mailed to each director,
addressed to his residence or usual place of business, at least four
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<PAGE>
days before the day on which the meeting is to be held, or shall be sent to such
address by telegraph, or be given personally or by telephone or by telefax not
later than two days before the day on which the meeting is to be held. Notice of
any meeting may be waived in writing by any director before, at or after the
meeting.
Section 9. QUORUM AND MANNER OF ACTING. A majority of the member of the Board
of Directors then in office shall constitute a quorum for the transaction of any
business at any meeting of the Board of Directors, and, except as herein
otherwise provided, the act of a majority of those present at the meeting at
which a quorum is present shall be the act of the Board of Directors. In the
absence of a quorum of the Board of Directors a majority of the members present
may adjourn the meeting from time to time until a quorum be had, and no notice
of any such adjournment need be given. Members of the Board of Directors may
participate by telephone conference call.
ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
Section 1. HOW CONSTITUTED AND THE POWERS THEREOF. The Board of Directors by
the vote of a majority of the entire Board, may designate three or more
directors to constitute an Executive Committee, who shall serve during the
pleasure of the Board of Directors. Except as otherwise provided by law, by
these by-laws or by resolution adopted by a majority of the whole
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<PAGE>
Board of Directors, the Executive Committee shall possess and may exercise
during the intervals between the meetings of the Directors, all of the powers of
the Board of Directors in the management of the business, affairs and property
of the Corporation, including the power to cause the seal of the Corporation to
be affixed to all papers that may require it.
Section 2. ORGANIZATION, ETC. The Executive Committee shall choose its own
Chairman and its Secretary and may adopt rules for its procedure. The Committee
shall keep a record of its acts and proceedings and report the same from time to
time to the Board of Directors.
Section 3. MEETINGS. Meetings of the Executive Committee may be called by the
Chairman of the Committee, and shall be called by him at the request of any
member of the Committee, or by any member if there shall be no Chairman. Notice
of each meeting of the Committee shall be sent to each member of the Committee
by mail at least two days before the meeting is to be held, or given personally
or by telegraph or telephone at least one day before the day on which the
meeting is to be held. Notice of any meeting may be waived before, at or after
the meeting.
Section 4. QUORUM AND MANNER OF ACTING. A majority of the Executive Committee
shall constitute a quorum for the transaction of business, and the act of a
majority of those present at the meeting at which a quorum is present shall be
the act of the Executive Committee.
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<PAGE>
Section 5. REMOVAL. Any member of the Executive Committee may be removed,
with or without cause, at any time, by the Board of Directors.
Section 6. VACANCIES. Any vacancy in the Executive Committee shall be filled
by the Board of Directors.
Section 7. OTHER COMMITTEES. The Board of Directors shall by resolution
provide for an Audit Committee and such other standing or special committees as
it deems desirable, and discontinue the same at pleasure. Each Committee shall
have such powers and perform such duties, not inconsistent with law, as may be
assigned to it by the Board of Directors or by the Executive Committee.
ARTICLE IV
OFFICES AND OFFICERS
Section 1. Officers - Number. The officers of the Corporation shall be the
Chairman of the Board, the President, one or more Vice-Presidents as the Board
of Directors may determine, a Treasurer and a Secretary. The Board of Directors
may from time to time appoint one or more Assistant Secretaries and Assistant
Treasurers. The same person may hold any two or more offices except those of
President and Secretary. No officers except the Chairman of the Board need be a
member of the Board of Directors.
-8-
<PAGE>
Section 2. SALARIES. The Board of Directors may from time to time fix the
salary of the Chairman of the Board, as well as the salaries of other officers
of the Corporation.
Section 3. ELECTION, TERM OF OFFICE AND QUALIFICATIONS. All officers of the
Corporation shall be elected annually (unless otherwise specified at the time of
election) by the Board of Directors and each officer shall hold office until his
successor shall have been duly chosen and shall have qualified, or until he
shall resign or shall have been removed in the manner hereinafter provided.
Section 4. VACANCIES. If any vacancy shall occur in any office of the
Corporation, such vacancy shall be filled by the Board of Directors.
Section 5. OTHER OFFICERS, AGENTS AND EMPLOYEES. The Board of Directors may
from time to time appoint such other officers, agents and employees of the
Corporation as may be deemed proper, and may authorize any officer to appoint
and remove agents and employees. The Board of Directors or the Chairman of the
Board may from time to time prescribe the powers and duties of such officers,
agents and employees of the Corporation in the management of its property,
affairs and business.
Section 6. REMOVAL. Any officer of the Corporation may be removed, either
with or without cause, by vote of a majority of the Board of Directors.
-9-
<PAGE>
Section 7. CHAIRMAN OF THE BOARD. The Chairman of the Board shall have
general charge and supervision of the affairs of the Corporation and shall have
all the powers allowed the President herein. He shall be an ex officio member of
all committees.
Section 8. PRESIDENT. Subject to the Chairman of the Board the President
shall be the Chief Executive Officer of the Corporation and shall have general
charge of the conduct and the business of the Corporation; and shall do and
perform such other duties as from time to time may be assigned to him by the
Chairman of the Board or by the Board of Directors.
Section 9. VICE-PRESIDENT. The Vice-President or Vice-Presidents of the
Corporation shall have such powers and perform such duties as the Board of
Directors may from time to time prescribe in these By-Laws.
Section 10. TREASURER. The Treasurer shall have charge of the funds,
securities, receipts and disbursements of the Corporation. He shall deposit all
monies and other valuable effects in the name and to the credit of the
Corporation in such banks or trust companies or with such other depositories as
the Board of Directors may from time to time designate. He shall supervise and
have charge of keeping correct books of account of all the Corporation's
business and transactions. If required by the Board of Directors he shall give a
bond in such sum as the Board of Directors may designate, conditioned upon the
faithful performance of the duties of his office and the restoration to the
Corporation, at the expiration of his term of office, or in case of
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<PAGE>
his death, resignation or removal from office, of all books, papers, vouchers,
money or other property of whatever kind in his possession belonging to the
Corporation. He shall also have such other powers and perform such other duties
as pertain to his office, or as the Board of Directors or the President may from
time to time prescribe. The Treasurer shall report to the Chairman of the Audit
Committee and the President, and shall be under the direction of the President
except in the event that, in order of priority, the Board of Directors or the
Chairman of the Audit Committee, specifically directs otherwise.
Section 11. ASSISTANT TREASURERS. In the absence of or disability of the
Treasurer, the Assistant Treasurers, in the order designated by the Board of
Directors shall perform the duties of the Treasurer, and, when so acting, shall
have all the powers of, and be subject to all restrictions upon, the Treasurer.
Section 12. SECRETARY. The Secretary shall attend all meetings of the
stockholders of the Corporation and shall keep the minutes of all such meetings
in a book or books kept by him for that purpose. He shall keep in safe custody
the seal of the Corporation, and, he shall affix such seal to any instrument
requiring it. In the absence of a Transfer Agent or a Registrar, the Secretary
shall have charge of the stock certificate books and the Secretary shall have
charge of such other books and papers as the Board of Directors may direct. He
shall also have such other powers and perform such other duties as pertain to
his office, or as the Board of Directors or the Chairman of the Board or the
President, in that order of priority, may from time to time prescribe.
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<PAGE>
Section 13. ASSISTANT SECRETARIES. In the absence or disability of the
Secretary, the Assistant Secretaries, in the order designated by the Board of
Directors shall perform the duties of the Secretary, and, when so acting, shall
have all the powers of, and be subject to all the restrictions upon, the
Secretary.
ARTICLE V
CHECKS, DRAFTS, ETC.
All checks, drafts, or orders for the payment of money, notes or other
evidences of indebtedness issued in the name of the Corporation shall be signed
by such officer or officers, agent or agents, person or persons, to whom the
Board of Directors shall have delegated the power, but under such conditions and
restrictions as in said resolutions may be imposed. The signature of any officer
upon any of the foregoing instruments may be a facsimile whenever authorized by
the Board of Directors.
ARTICLE VI
SHARES AND THEIR TRANSFER
Section 1. ISSUE OF CERTIFICATE OF STOCK. The Board of Directors shall
provide for the issue and transfer of the certificate of stock of the
Corporation and prescribe the form of such certificates. Every owner of stock of
the Corporation shall be entitled to a certificate of stock,
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<PAGE>
which shall be under the seal of the Corporation (which seal may be a facsimile,
engraved or printed), specifying the number of shares owned by him, and which
certificate shall be signed by the Secretary or an Assistant Secretary or the
Treasurer or an Assistant Treasurer of the Corporation. Said signatures may,
wherever permitted by law, be facsimile, engraved or printed. In case any
officer or officers who shall have signed, or whose facsimile signatures shall
have been used on any such certificate or certificates shall cease to be such
officer or officers of the Corporation, whether because of death, resignation or
otherwise, before such certificate or certificates shall have been delivered by
the Corporation, such certificate or certificates may nevertheless be issued and
delivered as though the person or persons who signed such certificate or
certificates or whose facsimile signature or signatures shall have been used
thereon had not ceased to be such officer or officers of the Corporation.
Section 2. TRANSFER AGENTS AND REGISTRARS. The Corporation may have one or
more Transfer Agents and one or more Registrars of its stock, whose respective
duties the Board of Directors may, from time to time, prescribe. If the
Corporation shall have a Transfer Agent, no certificate of stock shall be valid
until countersigned by such Transfer Agent, and if the Corporation shall have a
Registrar, until registered by the Registrar. The duties of the Transfer Agent
and Registrar may be combined.
Section 3. Transfer of Shares. The shares of the Corporation shall be
transferable only upon its books and by the holders thereof in person or by
their duly authorized attorneys or legal representatives, and upon such transfer
the old certificates shall be surrendered to the
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<PAGE>
Corporation by the delivery thereof to the person in charge of the stock and
stock transfer books and ledgers or to such other person as the Directors may
designate for such purpose, and new certificates shall thereupon be issued.
Section 4. ADDRESSES OF STOCKHOLDERS. Every stockholder shall furnish the
Transfer Agent, or in the absence of a Transfer Agent, the Registrar, or in the
absence of a Transfer Agent and a Registrar, the Secretary, with an address at
or to which notices of meetings and all other notices may be served upon or
mailed to him, and in default thereof, notices may be addressed to him at the
office of the Corporation.
Section 5. CLOSING OF TRANSFER BOOKS; RECORD DATE. The Board of Directors
shall have power to close the stock transfer books of the Corporation for a
period not exceeding fifty (50) days and not less than ten (10) days prior to
the date of any meeting of stockholders or prior to the last date on which the
consent or dissent of stockholders may be effectively expressed for any purpose
without a meeting; provided, however, that in lieu of closing the stock transfer
books as aforesaid the Board of Directors may fix a date not exceeding fifty
(50) days and not less than ten (10) days prior to the date of any meeting of
stockholders or prior to the last day on which the consent or dissent of
stockholders may be effectively expressed for any purpose without a meeting as
the time as of which stockholders entitled to notice of and to vote at such
meeting or whose consent or dissent is required or may be expressed for any
purpose, as the case may be, shall be determined, and all persons who were
holders of record of voting stock at such time and
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<PAGE>
no others shall be entitled to notice of and to vote at such meeting or to
express their consent or dissent, as the case may be.
The Board of Directors shall also have power to close the stock transfer
books of the Corporation for a period not exceeding fifty (50) days preceding
the date fixed for the payment of any dividend or the making of any distribution
or for the delivery of any evidence of right or evidence of interest; provided,
however, that in lieu of closing the stock transfer as aforesaid the Board of
Directors may fix a date not exceeding fifty (50) days preceding the date fixed
for the payment of any such dividend or the making of any such distribution or
for the delivery of any such evidence of right or interest as a record time for
the determination of the stockholders entitled to receive any such dividend,
distribution, right or interest, and in such case only stockholders of record at
the time so fixed shall be entitled to receive such dividend, distribution,
right or interest.
Section 6. LOST AND DESTROYED CERTIFICATES. The Board of Directors may direct
a new certificate or certificates of stock to be issued in the place of any
certificate or certificates theretofore issued and alleged to have been lost or
destroyed; but the Board of Directors when authorizing such issue of a new
certificate or certificates, may in its discretion require the owner of the
stock represented by the certificates so lost or destroyed or his legal
representative to furnish proof by affidavit or otherwise to the satisfaction of
the Board of Directors of the ownership of the stock represented by such
certificate alleged to have been lost or destroyed and the facts which tend to
prove its loss or destruction. The Board of Directors may also require such
person to execute and deliver to the Corporation a bond, with or without
sureties, in such
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sum as the Board of Directors may direct; indemnifying the Corporation against
any claim that may be made against it by reason of the issue of such new
certificate. The Board of Directors, however, may, in its discretion, refuse to
issue any such new certificate, except pursuant to court order.
ARTICLE VII
SEAL
The corporate seal of the Corporation shall be circular in form and shall
contain the name of the Corporation, and the words "Corporate Seal New York" or
words of similar import. Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or in any manner reproduced.
ARTICLE VIII
MISCELLANEOUS
Section 1. EXAMINATION OF BOOKS AND RECORDS. The Board of Directors may
determine from time to time whether and to what extent and at what times and
places and under what conditions and regulations the accounts and books of the
Corporation, or any of them, shall be open to the inspection of the stockholders
and no stockholder shall have any right to inspect any account or book or
document of the Corporation, except as provided by the statutes of the State of
New York, or authorized by the Board of Directors.
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<PAGE>
Section 2. VOTING OF STOCK IN OTHER CORPORATIONS. Any shares of stock in any
other corporation, which may from time to time be held by the Corporation, may
be represented and voted at any of the Stockholders' meetings thereof by the
Chairman of the Board or the President or a Vice-President of the Corporation or
by proxy or proxies appointed by the President or one of the Vice-Presidents of
the Corporation. The Board of Directors, however, may by resolution appoint any
other person or persons to vote such shares, in which case such other person or
persons shall be entitled to vote such shares upon the production of a certified
copy of such resolution.
Section 3. FISCAL YEAR. The fiscal year of the Corporation shall begin the
first day of April in each year or such other time as the Board of Directors
determines.
ARTICLE IX
INDEMNIFICATION
(a) Anyperson who, since April 1, 1992, is or has been a director or
officer of the Corporation shall in accordance with paragraph (b)
below, be indemnified by the Corporation against any and all liability
and expenses (including, but not limited to, attorney's fees and
disbursements, and amounts paid in settlement or in satisfaction of
judgments or as fines or penalties), incurred or paid by him at any
time in connection with or resulting from any claim, action, suit or
proceeding, whether civil, criminal,
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<PAGE>
administrative, investigative or otherwise, including any appeal relating
thereto, in which he may (i) by reason of his being or having been a
director or officer of the Corporation, partnership, joint venture, trust,
employee benefit plan, or (ii) by reason of his serving or having served
any other corporation, partnership, joint venture, trust employee benefit
plan, organization or enterprise of any kind in any capacity, while a
director or officer of the Corporation, and at its request or in the
course and scope of his employment or capacity as a director or officer of
the Corporation, or (iii) by reason of any action taken or not taken in
the course and scope of any such employment or capacity; provided that, in
the case of any claim, action, suit or proceeding (whether or not made or
brought by or in the right of the Corporation to procure a recovery or
judgment in its favor), the Corporation shall not be obligated to
indemnify such person (i) in respect of any claim, issue or matter as to
which such person did not act in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation,
and, in the case of a criminal action or proceeding, without reasonable
cause to believe that his conduct was unlawful, or (ii) to the extent
indemnification is prohibited by law.
(b) Except where indemnification has been awarded by a court, the Board of
Directors, by majority vote of a quorum consisting of directors not
parties to such claim, action, suit or proceeding, or alternatively, a
written opinion of independent legal counsel, shall determine whether
the applicable standard of conduct set forth in subparagraph (a) has
been met. The termination of any such claim, action, suit or
proceeding, by judgment, order, settlement (whether with or without
court approval), conviction, or upon a plea
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<PAGE>
of guilty or of nolo contendere, or its equivalent, shall not of itself
create a presumption that a director or officer did not meet the
applicable standard of conduct set forth in subparagraph (a).
(c) Any and all expenses incurred by any such person with respect to any
such claim, action, suit or proceeding may be advanced by the
Corporation prior to the final disposition thereof upon receipt of an
undertaking by such person to repay such amount if it shall
ultimately be determined that he is not entitled to indemnification.
(d) The rights of indemnification herein provided shall not be deemed
exclusive of any other rights (including rights of indemnification)
to which any such person may otherwise be entitled by law, contract,
a duly adopted resolution of the Board of Directors vote of
stockholders, or these By-Laws and in the event of such person's
death, all rights hereunder shall extend to his heirs and legal
representatives.
Notwithstanding the provisions of the By-Law, the Corporation may
indemnify directors and officers to the full extent permitted under
the laws of the State of New York and any other applicable laws, now
or hereafter in effect. The Board of Directors on behalf of the
Corporation shall have the power, to the full extent permitted by
law, to authorize indemnification of any employee or other person.
(e) The foregoing rights shall be available only to persons who shall
have been officers or directors on or after April 1, 1992, and such
rights shall be available in respect of any claim, action, suit or
proceeding, whether or not based on matters which antedate the
adoption of this By-Law or the predecessor provision to this By-Law.
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<PAGE>
(f) If any provision of this By-Law or any award made hereunder shall for
any reason be determined to be invalid, the remaining provisions
hereof or the validity of any other award shall not be affected
thereby but shall remain in full force and effect.
ARTICLE X
AMENDMENTS
Section 1. BY STOCKHOLDERS. These By-Laws may be made, amended, altered or
repealed, by the affirmative vote of the holders of a majority of the stock of
the Corporation, or their proxies, who shall be present and entitled to vote at
any annual or special meeting of stockholders, provided that notice of the
proposed amendment, alteration or repeal shall have been included in the notice
of the meeting.
Section 2. BY DIRECTORS. The Board of Directors shall have the power, by a
vote of a majority of the Directors then in office, at a meeting called pursuant
to a notice in which any such proposed modification of the By-Laws is set forth,
to make, amend, alter or repeal these ByLaws.
-20-
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